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The Trial of David Hicks and the Law on the Use of Force

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David Hicks is an Australian citizen in the custody of the government of the United States of America at Guantᮡmo Bay, Cuba. He was alleged to have served with the Taliban and al-Qaeda in Afghanistan. This led to his detention for more than five years as an 'unlawful combatant'. This category, it is claimed, is outside the normal protections of United States Constitutional due process and criminal law, and outside relevant provisions of international law especially the Geneva Conventions. Hicks' initial charges alleged conspiracy, attempted murder by an unprivileged belligerent and aiding the enemy. His trial before a United States military commission was due to begin in November 2005. These proceedings were cancelled following the Supreme Court ruling in Hamdan v Rumsfeld1 that declared the military commission process unconstitutional and illegal. The response of the2 United States Government was then to pass the Military CommissionsActof2006 andpressnewcharges.Thenewchargesencompassedproviding material support for terrorism and attempted murder in violation of the law of war.3 On 26 March 2007 Hicks was convicted on his own guilty pleas for the former, sentenced to seven years imprisonment, all but nine months suspended and most of it to be served in an Australian prison.4 This note focuses on the legality (as opposed to the expediency or propriety) of the process. The underlying reasoning is unaffected by David Hicks having entered a guilty plea, the validity of which is highly debatable